News In Focus

High Court releases "World's End" double jeopardy ruling

18 November 2014

Investigative possibilities opened up by new DNA analysis techniques not available at the previous trial, and the interpretations placed on the results, met the "new evidence" test under the Double Jeopardy (Scotland) Act 2011 so as to justify the further prosecution of the man accused of the "World's End" murders, according to a High Court ruling now published.

The decision, given in March 2014, paved the way for the second trial of Angus Sinclair for the abduction, rape and murder in 1977 of Christine Eadie and Helen Scott, who were last seen alive at Edinburgh's World's End public house and whose bodies were found some miles apart in East Lothian the next day. Sinclair had been acquitted in a previous trial in 2007 when the trial judge upheld a submission of no case to answer.

While DNA analysis evidence had been led, the judge concluded that the Crown evidence, taken at its highest, was “neutral” as to whether or not Sinclair was involved in any act involving force or violence against either girl, or present when those acts took place, there having been some sexual contact between him and the girls over the period of 12 hours or so; that there was no evidence to establish rape, or forensic evidence linking him to the ligatures found on the bodies; and that these were crucial gaps in the Crown case.

The Crown's present application was based on a number of DNA profiling techniques that had been developed and approved since 2007, including "Crimelite", described as a detection tool but also an interpretative tool, which made it possible to determine whether material had been deposited, for example, on the outside or inside of a garment and how it had been distributed on a garment, and also to identify material which would have been invisible under the normal type of strong white light used at crime scenes and in laboratories. The court accepted evidence that testing carried out in 2011 and 2012 achieved results that could not previously have been reached.

The Crown argued that the new evidence supplied the deficiencies identified by the trial judge. Its overall effect was to allow the inference to be drawn that DNA from the respondent and his brother in law, since deceased, was deposited on ligatures at a time when they were being used as ligatures. The results took the evidence "from neutral to being capable of bearing the inference that the DNA was deposited in an act of violence preparatory to applying the [girls'] tights as a ligature".

For Sinclair it was argued that it had not been established that a further sample taken from him under section 19A of the Crimial Procedure (Scotland) Act 1995 had been properly taken; that the only evidence that could be led at any subsequent trial was evidence led at the previous trial plus the new evidence on which authority to bring the new prosecution was based; and that there had been a significant amount of prejudicial publicity featuring him in what had become a notorious case.

Giving the opinion of the court, Lady Dorrian, who sat with Lord Justice Clerk Carloway and Lord Bracadale, said that the combined effect of section 4(3) and 4(7)(b) of the 2011 Act was that an acquittal could only be overturned where the evidence relied on in the application is both “new” and was not, or could not with reasonable diligence have been made, available at the original trial. By section 4(7)(a) the "case" against the accused had also to be stengthened substantially by the new evidence. Contrary to a submission for Sinclair, that meant the case on which he had been previously acquitted and did not also included evidence available but not led at the previous trial.

The court had to proceed on the basis that the previous decision to acquit was correct. But if the application was granted, Crown was given authority to “bring a new prosecution”, which supported the suggestion that at a subsequent trial any available, competent evidence might be led.

In relation to section 19A, she said, "this court is entitled to proceed on the basis that the Crown would be able to establish that the prior sample has been tested to destruction, and that in any event one way or another the Crown would be able to prove that the upgraded DNA profile which they have attributed to the respondent is indeed his DNA profile". In any event, Sinclair had agreed to provide a sample before the police had finished explaining the legal rules involved.

Applying the statutory tests to the new evidence, "We have also reached the conclusion that the evidence which the Crown relies upon in this application is evidence which was not, and could not with reasonable diligence, have been made available at the trial." The court had taken account of the evidence which was available at the previous trial but which was not led, but was satisfied that it could not, with reasonable diligence, have led to the evidence now relied on being made available at the trial. "The evidence which is now relied upon is evidence which would enable a jury to draw conclusions about the respondent’s involvement in acts of violence against these two girls in a way which the evidence available at the trial would not have allowed", Lady Dorrian said.

The court accepted that the evidence available now was no longer “neutral” in the respects referred to by the trial judge, and provided a sufficiency of evidence against Sinclair, so that the case against him could be said to be substantially strengthened by the new evidence. It was also satisfied, in terms of the final statutory condition, "that on the new evidence and the evidence led at the original trial, it is highly likely that a reasonable jury, properly instructed, would have convicted the respondent of the original offence".

Lady Dorrian added: "The conclusions referred to above which advance the case against the respondent in the ways explained would not have been possible without the use of all the specialist techniques which have been developed since the trial, and the evidence upon which the conclusions are based could not with reasonable diligence have been made available at that time."

Regarding the prejudicial publicity, whether a fair trial could be achieved was a factor to be taken into account in assessing whether it was in the interests of justice that authority be given for a new prosecution. However, much of the publicity had been some years previously, and "is not likely to be at the forefront of the minds of potential jurors and many of them will not have read the material in question". The judge could give directions as necessary to remind jurors as to their responsibilities, and the trial did not have to take place in Edinburgh. "Taking all these factors into account it is not possible to reach the conclusion that the respondent would inevitably be deprived of a fair trial as a result of prior publicity."

The Crown had act expeditiously in bringing the application; the crimes were of the utmost seriousness; and it was in the interests of justice to grant the application.

A separate opinion has also been released concerning a motion by Sinclair that Lord Carloway recuse himself from hearing the application, having been the trial judge in 2001 when Sinclair was convicted of a rape and murder in 1978. It was said that his decision might be influenced by his knowledge of the earlier case and his comments when passing sentence on Sinclair. The court refused the application on the basis that "the mere fact that a judge has had past involvement in a judicial decision involving a party does not amount to a reason for that judge to decline jurisdiction. There would have to have been something extraordinary in the previous case, such as the expression of outspoken views of a gratuitous nature, before declinature would be justified". Lord Carloway's previous remarks were directly relevant to the performance of his judicial duties at the time; "They have no bearing on the determination of the issues which arise in this application and the fair-minded and informed observed would have no reason to doubt the judge’s ability to perform his duties in connection with this application with an objective and impartial judicial mind."